Citation Nr: 21063598 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-02 824 DATE: October 14, 2021 ORDER Entitlement to service connection for a right knee condition is granted. Entitlement to service connection for a left knee condition is granted. Entitlement to service connection for a left shoulder condition is granted. Entitlement to service connection for a right shoulder condition is granted. FINDINGS OF FACT 1. The evidence is at least in approximate balance as to whether the Veteran's right knee strain is related to his active-duty service. 2. The evidence is at least in approximate balance as to whether the Veteran's left knee strain is related to his active-duty service. 3. The evidence is at least in approximate balance as to whether the Veteran's left shoulder rotator cuff tendonitis is related to his active-duty service. 4. The evidence is at least in approximate balance as to whether the Veteran's right shoulder rotator cuff tendonitis is related to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a left shoulder condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a right shoulder condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2008 to October 2012 with additional Reserves service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board previously remanded these claims in April 2019, August 2020, and May 2021 for additional development. As will be discussed in more detail below, the Board finds substantial compliance with the May 2021 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to benefits may be found through direct service connection by establishing: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service," also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a right knee condition is granted. 2. Entitlement to service connection for a left knee condition is granted. The Veteran contends he has a right and left knee condition that was caused by or incurred during service. The Board finds service connection is warranted for both claims. Turning to the relevant evidence of record, upon entrance, the Veteran was clinically evaluated as normal. See September 2008 entrance examination. In the corresponding report of medical history, he declined experiencing any impaired use of legs or having knee trouble. See September 2008 report of medical history. In a March 2011 pre-deployment screening, the Veteran indicated he was in "excellent" health and declined having any concerns about his health. See March 2011 pre-deployment screen. In a January 2012 periodic health assessment, the Veteran declined experiencing pain in any location. See January 2012 periodic health assessment. The Veteran entered the Reserves following active duty and a separation examination from active duty is not available for review. However, the Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnosis related to the right or left knee. In 2015, the Veteran stated that he injured his knees during active-duty service. See August 2015 Notice of Disagreement. In April 2016, the Veteran reported experiencing episodes of knee pain. See April 2016 VA treatment records. He stated that he has stopped jogging and exercising due to discomfort. If he does not exercise or jog, he does not experience knee pain. The provider noted that the Veteran's "chronic pain and muscle tension limits his activity." Later in April, the Veteran's active problem list included knee joint pain on movement. See April 2016 VA treatment records. In July, the Veteran reported experiencing bilateral knee pain with an etiology "originally associated with a vehicle rollover in Afghanistan in 2011." See July 2016 VA treatment records. The Veteran stated that he has tried jogging for exercise recently, but it exacerbates intermittent knee pain. Later in July, the Veteran completed a physical therapy consult knee pain with a "non-specific" onset. See July 2016 VA treatment records. He reported experiencing knee pain after exercising and a few days after exercising. The provider noted positive for popping patella with left knee extension and mild crepitus in the right knee. In August 2016, the Veteran was scheduled for physical therapy but did not appear for the session. See August 2016 VA treatment records. In September, the Veteran was educated on treatment options for chronic pain. See September 2016 VA treatment records. In 2017, the Veteran complained of knee pain citing a "recent knee injury." See March 2017 VA treatment records. In May 2019, the Veteran reported a desire to start physical therapy for knee pain. See May 2019 VA treatment records. Active problems included painful knee joint on movement. In July, painful knee joint on movement was noted as part of the Veteran's history. In August, painful knee joint on movement was listed as a current medical problem. See August 2019 VA treatment records. The record contains multiple buddy statements. In June 2019, a fellow servicemember reported that he was in an MRAP that overturned when a bank collapsed. See June 2019 buddy statement. He noted that the Veteran in this case was also in the vehicle. The individual reported that he was shaken up and does not remember the rest of the incident. In another buddy statement, a fellow servicemember stated that he was deployed with the Veteran. See July 2019 buddy statement. The fellow servicemember again reported that the ground gave way causing an MRAP to fall 10 to 20 feet down the side of a canal. He reported that the MRAP rolled over twice during the fall, "jarring the Marines inside." The Veteran has been afforded two VA examinations as well as another VA opinion to determine the nature and etiology of any right and left knee disorder. The first examination occurred in December 2019 during which the examiner did not find a diagnosis for the left or right knee. See December 2019 disability benefits questionnaire. The examiner noted both knees were normal. The examiner relied upon April 2016 imaging that was normal for both knees. The Veteran was noted to have been diagnosed with bilateral knee pain in 2016. The examiner requested additional imaging to determine the cause of the Veteran's pain. The Veteran reported experiencing bilateral knee pain. The Veteran reported experiencing right and left knee swelling and pain in both knees with sitting and transitioning to standing. The December 2019 VA examiner opined that the Veteran's right and left knee condition was less likely than not caused by or incurred in service. See December 2019 VA examination. The examiner reasoned that the Veteran denied knee pain in 2008 and did not report knee pain until 2016 after service. The examiner found there was a lack of evidence for bilateral knee pain related to a rollover accident during service in 2011 further reasoning that the Veteran's 2016 treatment records noting knee pain did not attribute the pain to a vehicle roll over in 2011. The examiner also appears to have erroneously opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression because the Veteran denied any medical issues to the knees upon entrance. Another VA opinion was obtained in October 2020 during which the examiner opined that the Veteran's right and left knee conditions were less likely than not caused by or incurred during service. See October 2020 VA opinion. The examiner reasoned that the Veteran's STRs and medical records show no evidence of a diagnosis, treatment, or symptoms suggestive of a right or left knee condition during service or within a year of separation. The Veteran had complained of subjective pain without identifiable pathology. The most recent VA examination occurred in June 2021 during which the examiner found the Veteran had bilateral knee strain. See June 2021 VA examination. The Veteran reported that he injured his knees during a rollover accident and also reports rucking with 100 pounds on his back contributing to his bilateral knee pain. He reported experiencing difficulty running due to his knees and difficulty bending. The examiner opined the Veteran's right and left knee conditions were less likely than not caused by or incurred during service. The examiner reasoned that there was no evidence of knee injuries sustained in the MRAP accident. Rather, the first documented treatment for bilateral knee pain was in April 2016, at which time a diagnosis was not rendered. The examiner stated that while his examination findings are consistent with bilateral knee strain, without military medical records, it is unclear if his current condition was a result of the MRAP accident. At the outset, the Board notes a Veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111. According to 38 C.F.R. § 3.304, the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304; Crowe v. Brown, 7 Vet. App. 238 (1994). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance, VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Here, the Veteran was clinically evaluated as normal upon entrance without any notations related to the left or right knee. The presumption of soundness has therefore attached in this case and can be rebutted if there is clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. The Board finds there is not clear and unmistakable evidence that the Veteran had a pre-existing left or right knee condition. Indeed, the Veteran declined experiencing right or left knee pain upon entrance and during a pre-deployment screen. Further, the Veteran has consistently, and credibly, conveyed symptom onset related to an in-service accident. While the December 2019 VA examiner rendered an opinion regarding pre-existing conditions, it appears to have been in error as even the examiner explained the Veteran denied any medical issues to the knees upon entrance. Thus, the Veteran is presumed sound upon entrance and said presumption has not been rebutted. The Board finds the Veteran has a current disability of bilateral knee strain as found in the June 2021 VA examination. Additionally, the Veteran has competently and credibly reported being in a vehicle accident during service which was corroborated by fellow servicemember buddy statements as mentioned above. Thus, the remaining question for the Board is whether the Veteran's current right and left knee strain was caused by or is otherwise related to the Veteran's in-service vehicle accident. For the following reasons, the Board finds entitlement to service connection for right and left knee strain is warranted. The December 2019 and October 2020 VA examinations were not adequate. Specifically, the December 2019 VA examiner relied upon a lack of contemporaneous treatment records to support the opinion offered without considering the Veteran's lay statements of symptoms. See Miller v. Wilkie, 32 Vet. App. 249 (2020); see Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The October 2020 VA examiner failed to consider whether pain caused functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (2018). While these examinations are not sufficient to resolve the Veteran's claims, they can still carry probative value such as consideration of the Veteran's lay statements contained therein. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding "Furthermore, even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). While the June 2021 VA examiner offered a negative nexus opinion, it was similarly based upon a lack of contemporaneous treatment records despite the Veteran's lay statements of symptoms and the July 2016 VA treatment records referencing the vehicle rollover in 2011 being the etiology of the Veteran's knee pains. See Miller, 32 Vet. App. 249; see Buchanan, 451 F.3d at 1336-37. Moreover, the Veteran's lay statements indicate that his right and left knee symptoms began during service with an in-service vehicle accident and have continued in the years since service, which he is competent to report. Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). There is nothing to explicitly contradict these reports. While treatment records during service lack complaints related to the right and left knee, the Board notes the Veteran's STRs largely lack any mention of ailments or symptoms. Further, while the Veteran separated in 2012 and the first documented complaint of knee pain did not occur until 2016, the record lacks any basis upon which to contradict the Veteran's competent reports of symptoms and onset thereof. Additionally, the in-service incident is consistent with the evidence of record. Indeed, two separate service members corroborated the Veteran's accounts of being in a vehicle accident during service. One of the buddy statements even noted that the vehicle rolled over twice during the accident. Further, the Board does not have the benefit in this case of a separation examination prior to the Veteran's enlistment in the Reserves. Thus, the reports of continuous right and left knee pain symptoms with an onset in service and since separation are credible. To the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. At this point, the Board could remand the claim for yet another VA examination or opinion. However, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"). For the foregoing reasons, the evidence is at least in equipoise as to whether the Veteran's right and left knee strain is related to service. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021) (holding the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right and left knee strain is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a left shoulder condition is granted. 4. Entitlement to service connection for a right shoulder condition is granted. The Veteran contends he has a left and right shoulder condition that was caused by or incurred during service. The Board finds service connection is warranted for both claims. Turning to the relevant evidence of record, upon entrance, the Veteran was clinically evaluated as normal. See September 2008 entrance examination. In the corresponding report of medical history, he declined experiencing shoulder problems or symptoms. See September 2008 report of medical history. The Veteran did note he had a scar on the right shoulder from working construction a year before when he was cut by a piece of tin. Surgery and stitches were not required. In a March 2011 pre-deployment screening, the Veteran indicated he was in "excellent" health and declined having any concerns about his health. See March 2011 pre-deployment screen. In a January 2012 periodic health assessment, the Veteran declined experiencing pain in any location. See January 2012 periodic health assessment. The Veteran entered the Reserves following active duty and a separation examination from active duty is not available for review. However, the Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnosis related to the right or left shoulder. In 2015, the Veteran stated that he injured his shoulders during active duty. See August 2015 Notice of Disagreement. In April 2016, the Veteran complained of shoulder pain. See April 2016 VA treatment records. Treatment records note the Veteran's chronic pain and muscle tension limits his activity. In July, the Veteran was referred to physical therapy for shoulder pain with a nonspecific date of onset. In September, the Veteran was noted to experience chronic pain. The record contains multiple buddy statements. In June 2019, a fellow servicemember reported that he was in an MRAP that overturned when a bank collapsed. See June 2019 buddy statement. He noted that the Veteran in this case was also in the vehicle. The individual reported that he was shaken up and does not remember the rest of the incident. In another buddy statement, a fellow servicemember stated that he was deployed with the Veteran. See July 2019 buddy statement. The fellow servicemember again reported that the ground gave way causing an MRAP to fall 10 to 20 feet down the side of a canal. He reported that the MRAP rolled over twice during the fall, "jarring the Marines inside." The Veteran has been afforded two VA examinations as well as another VA opinion to determine the nature and etiology of any right and left shoulder disorder. The first examination occurred in December 2019 during which the examiner found the Veteran did not have a right or left shoulder disorder and that both shoulders were normal. Imaging was completed that was negative. See December 2019 VA examination. The examiner noted the Veteran was diagnosed with bilateral shoulder pain. The Veteran reported that he experiences bilateral shoulder pain after exercises. The examiner opined that the Veteran's right and left shoulder conditions were less likely than not caused by or incurred during service. The examiner noted that the Veteran's claims file lacked diagnosis of a shoulder condition and the Veteran did not seek medical attention for the bilateral shoulders until April 2016. The examiner further reasoned that there was a lack of medical evidence to show injury to the shoulders related to a motor vehicle accident in Afghanistan. Another VA opinion was obtained in October 2020 during which the examiner opined that the Veteran's claim condition was less likely than not caused by or incurred during service. See October 2020 VA examination. The examiner reasoned that the Veteran's medical records and STRs show no evidence of a diagnosis, treatment, or symptoms suggestive of a right or left shoulder condition while on active duty or within a year of separation. The Veteran complained of right and left shoulder pain without identifiable pathology. The examiner further reasoned that there was no evidence of injury during a 2011 MRAP accident. While buddy statements reference they were "jarred" and "shaken up," there was no mention of injuries or need for medical evaluation. The Veteran was most recently afforded a VA examination in June 2021 during which a diagnosis of right and left rotator cuff tendonitis was indicated. See June 2021 disability benefits questionnaire. The Veteran reported that he was in a vehicle accident in Afghanistan in 2011 injuring his shoulders. He reported he was riding in a motorized carrier and did not seek care following the incident. He also reported he carried 100 pounds of gear during patrol. The Veteran noted previously completing MRIs and imaging but contends he did not received results. The examiner opined the Veteran's right and left shoulder conditions were less likely than not caused by or incurred during service because there was no evidence that the Veteran's shoulder injuries were sustained in the MRAP accident during service. See June 2021 VA examination. The examiner noted the first documented treatment for shoulder pain was in April 2016 during which a diagnosis was not rendered. During the June 2021 VA examination, the Veteran's current examination findings were consistent with rotator cuff syndrome, however, without military medical records it is unclear if his current condition was the result of the MRAP accident. Therefore, it is less likely than not the shoulder conditions were caused by or incurred during the MRAP accident in 2011. The Board finds the Veteran has a current disability of right and left bilateral rotator cuff syndrome as found in the June 2021 VA examination. Additionally, the Veteran has competently and credibly reported being in a vehicle accident during service which was corroborated by fellow servicemember buddy statements as mentioned above. Thus, the remaining question for the Board is whether the Veteran's current right and left shoulder disability was caused by or is otherwise related to the Veteran's in-service vehicle accident. For the following reasons, the Board finds entitlement to service connection for right and left rotator cuff syndrome strain is warranted. The December 2019 and October 2020 VA examinations were not adequate. Specifically, the December 2019 VA examiner relied upon a lack of contemporaneous treatment records to support the opinion offered without considered the Veteran's lay statements of symptoms. See Miller, 32 Vet. App. 249; see Buchanan, 451 F.3d at 1336-37. The October 2020 VA examiner failed to consider whether pain caused functional impairment. See Saunders, 886 F.3d at 1367-68. While these examinations are not sufficient to resolve the Veteran's claims, they can still carry probative value such as consideration of the Veteran's lay statements contained therein. See Monzingo, 26 Vet. App. at 107. While the June 2021 VA examiner offered a negative nexus opinion, it was similarly based upon a lack of contemporaneous treatment records despite the Veteran's lay statements of symptom onset. See Miller, 32 Vet. App. 249; see Buchanan, 451 F.3d at 1336-37. Moreover, the Veteran's lay statements indicate that his right and left shoulder symptoms began during service with an in-service vehicle accident and have continued in the years since service, which he is competent to report. Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. There is nothing to explicitly contradict these reports. While treatment records during service lack complaints related to the right and left shoulder, the Board notes the Veteran's STRs largely lack any mention of ailments or symptoms. Further, while the Veteran separated in 2012 and the first documented complaint of shoulder pain did not occur until 2016, the record lacks any basis upon which to contradict the Veteran's competent reports of symptoms and onset thereof. Further, the in-service incident is consistent with the evidence of record. Indeed, two separate service members corroborated the Veteran's accounts of being in a vehicle accident during service. Also, the Board does not have the benefit in this case of a separation examination prior to the Veteran's enlistment in the Reserves. Thus, the reports of continuous right and left shoulder pain symptoms with an onset in service and since separation are credible. To the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. At this point, the Board could remand the claim for yet another VA examination or opinion. However, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c). For the foregoing reasons, the evidence is at least in equipoise as to whether the Veteran's right and left bilateral rotator cuff syndrome is related to service. See Lynch, 999 F.3d 1391. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right and left bilateral rotator cuff syndrome is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.